Citation Nr: 1520362
Decision Date: 05/12/15 Archive Date: 05/26/15
DOCKET NO. 06-17 833A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae (PFB).
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
V. Chiappetta, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Navy from June 1966 to June 1968, with prior and subsequent reserve service that included periods of active duty for training (ACDUTRA).
This matter is before the Board of Veterans' Appeals (the Board) on appeal of a February 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
In July 2010, the Veteran testified at a personal hearing before the undersigned, and a transcript of that hearing is of record.
In April 2014, the Board remanded the Veteran's service-connection claim for a respiratory condition, which the RO subsequently granted in a September 2014 rating decision. Accordingly, that issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).
The Board adds that in April 2014, it referred the issues of entitlement to service connection for a sleep disorder and chronic fatigue syndrome, claimed as secondary to service-connected posttraumatic stress disorder (PTSD), to the agency of original jurisdiction (AOJ) for appropriate action. To date, it does not appear that the AOJ has taken any action on these matters. As such, they are again referred to the AOJ.
The appeal is REMANDED to the AOJ.
REMAND
In April 2014, the Board remanded the Veteran's PFB claim so that the AOJ could afford the Veteran a retrospective medical assessment of his PFB from April 28, 1971 to the present. The Board ordered this development to comply with a September 2013 Order from the Court of Appeals for Veterans Claims (the Court). Unfortunately, although the AOJ scheduled and the Veteran appeared for a VA skin examination in May 2014, the VA examiner made no attempt to provide the requested retrospective analysis, nor did he provide enough information for the Board to adequately evaluate the current severity of the Veteran's PFB for the purposes of this adjudication. The Board has no choice but to remand this appeal another time to ensure compliance with its prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an appropriate VA examination to ascertain the nature and severity of his pseudofolliculitis barbae (PFB). To the extent possible, the examination should be conducted during an active stage of the condition. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail.
The examiner is asked to provide an assessment to the best of his or her medical knowledge regarding the level or levels of disability associated with the Veteran's service-connected PFB from April 28, 1971 to the present. The VA examiner should identify all symptoms and manifestations attributable to pseudofolliculitis barbae during this time period. To the extent possible, the examiner is asked to address each the following:
(a.) The degree to which the Veteran's PFB manifested in
exfoliation, crusting, systemic or nervous manifestations, repugnancy, itching, lesions, disfigurement, tissue loss, and/or asymmetry during the time period under review to the present day.
(b.) The percentage of the body affected by the Veteran's
PFB, and the percentage of the exposed area that has been affected by PFB during the period under review, to include as it currently manifests.
(c.) The extent to which treatment for PFB has required systemic therapy, such as corticosteroids or other immunosuppressive drugs during the period under review to the present day.
(d.) The nature and extent of any scarring caused by the PFB during the period under review to the present day, to include whether such scars, if present, are unstable and/or painful.
(e.) The extent to which the Veteran's PFB has caused any limitation of function of the neck, or any adverse effects on the Veteran's employability during the period under review to the present day.
In making this retrospective assessment, the examiner should take into consideration the current medical examination, the Veteran's own reported history, and any additional information that may be obtained through reviewing treatment records and competent lay statements that have been associated with the claims file.
A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any part of the requested retroactive assessment without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an assessment cannot be made.
2. Readjudicate the Veteran's claim for an initial rating greater than 10 percent for PFB with consideration of all pertinent rating criteria effective since April 28, 1971, as appropriate. If any claim remains denied, the AOJ should issue a Supplemental Statement of the Case and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Laura H. Eskenazi
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).